What Happens During an Appeal From a Criminal Conviction

What Can I Do If I Am Wrongly Convicted, Or My Sentence Is Unfair?

After conviction and sentencing, a defendant has the opportunity to file an appeal of his sentence. If the conviction results from a guilty plea, the defendant may have to ask for "leave" or permission to appeal the conviction. If the conviction results from a trial, the defendant has an absolute right to appeal. An appeal is not a retrial of the case, but is an examination of the trial record to ensure that proceedings were conducted in a fair manner.

What Happens When I Appeal?

The parties to an appeal submit written "briefs" to the appellate court, along with a copy of the trial court transcript and any exhibits that were used at trial. Oral arguments may be scheduled. Arguments are typically very short in duration, and tend to be academic in nature, focusing on legal issues.

Appellate review of a conviction is a bit like watching a videotape of a football game, to look for errors by the referees. If the referees make a lot of errors in a close game, you may get the feeling that their mistakes changed the result of the game. However, even if they made a lot of errors, the score can be so lopsided that you conclude that the errors did not affect the outcome. The judges on appeal are looking for errors which may have changed the verdict, and will disregard "harmless errors," which they believe did not have an effect. They judges will also disregard what they deem to be mistakes of "trial strategy" - a concept that is akin to when the coach chooses a play that doesn't work out the way he intended.

What Types of "Errors" Occur at Trial, and What do They Mean For My Appeal?

Among the types of error you may hear described are the following:

Fundamental Error

An error that goes to the heart of the case, and which can be considered by the court "in the interest of justice," even if the appellant fails to properly raise the issue on appeal.

Harmful Error

An error that the appellate court concludes had a probable impact on the outcome of the trial.

Harmless Error

An error tjat the appellate court concludes had no effect on the outcome of a trial. For example, if a defendant confesses to a murder, and the prosecution has his fingerprints on the murder weapon, the use of inadmissible "hearsay" testimony is likely to be found "harmless," due to the "overwhelming evidence" against the defendant.

Invited Error

Where the appellant asks the trial court to make a ruling which is actually erroneous, that party cannot later appeal the trial court's decision on the basis of that error.

Reversible Error

An error which causes the appellate court to overturn the lower court's decision is a "reversible error."

What Are "Procedural Due Process" and "Substantive Due Process"?

On appeal, you may hear the alleged violation of a defendant's rights desribed as a violation of his "procedural due process" rights or his "substantive due process" rights.

Procedural Due Process

Procedural due process involves the safeguard's to a person's liberty and property, set forth in the Constitution, such as the right to an attorney, the right to appointed counsel if you are indigent, the right to compel witnesses to appear at trial, the right to confront prosecution witnesses at trial, and the right to obtain a transcript of trial proceedings.

Substantive Due Process

Substantive due process involves the broad notion that a person shall not be arbitrarily deprived of his life, liberty or property. If a person is deprived of the opportunity to appeal a court decision, or is convicted when the prosecutor fails to produce "exculpatory evidence" which tends to prove his innocence, his substantive due process rights have been violated. Courts tend to be skeptical of claims of injustice where a defendant's procedural due process rights were respected, even when it appears that the wrong outcome may have been reached.

What Happens If I Lose My Appeal?

The first level of appeal, in most states, is to an intermediate-level appellate court. From there, it is possible to appeal to the State Supreme Court. Afterward, it is possible to pursue relief through the federal courts. (If you are convicted following a trial in federal court, your first appeal will be to the federal Court of Appeals, and your case will never be heard before a state court.) In most cases, after the initial appeal, you must request permission before you can file your appeal with a new court. An appeal to a federal court from a state court conviction must be premised upon "federal issues" - usually, violations of federal constitutional law. Your attorney on appeal must be sure to raise these issues with the state appellate courts, in order to "preserve" the issues for the federal appeal.

What Happens If I Win My Appeal?

If you win your appeal, the prosecutor will have the option of appealing to a higher court. Quite often, after a defendant wins an appeal, the prosecutor will offer a defendant the opportunity to plead guilty to an offense, with a sentence of "time served." This can be a good deal for a defendant, who may not want to risk being again convicted if the case is retried, and whose immediate priority may well be getting out of prison. However, sometimes the defendant will insist that he is innocent, and will demand a new trial. Other times, the prosecutor will refuse to plea bargain, insisting that the defendant belongs in prison.

Are There Situations Where The Prosecutor Will Simply Drop The Charges, After An Appeal?

Yes. If an appellate court rules that certain evidence, or a confession, should not have been admitted at trial, and it appears that the defendant cannot be convicted without the use of that evidence, sometimes the prosecutor will decide to dismiss the charges. It is rare that a prosecutor will decide that a defendant is, in fact, innocent -- but if that does happen, a prosecutor will refuse to retry the case.

Can I Appeal From a Probation Violation or a Parole Violation?

Yes. Depending upon your state, you may have to pursue an "administrative appeal" of a parole violation, before seeking an appeal to a trial or appellate court. An administrative appeal is heard by an officer of the legislative branch of government, called an "administrative law judge."

Copyright © 2000 Aaron Larson, All rights reserved. No portion of this article may be reproduced without the express written permission of the copyright holder. If you use a quotation, excerpt or paraphrase of this article, except as otherwise authorized in writing by the author of the article you must cite this article as a source for your work and include a link back to the original article from any online materials that incorporate or are derived from the content of this article.

This article was first published on Mar 1, 2000, and was last reviewed or amended on Sep 12, 2014.